State v. Gottschalk

¶1concurring.

¶2I agree with my colleagues that Criminal Rule 45 was not violated in this case. I further agree that the facts of this case demonstrate that there is a problem with the way that Rule 45(c)(1) defines the starting date for the speedy trial clock.

¶3*1173Background of the provision at issue in this case

¶4Criminal Rule 45 specifies the time limit for bringing a defendant to trial. Prior to 1993, the starting date for calculating Rule 45 was “the date [on which] the defendant [was] arrested [or] initially arraigned, or ... the date [on which] the charging document was] served upon the defendant, whichever [was] first”. But, as explained in the majority opinion, the rule was amended in 1993 to address a concern voiced by the Department of Law.

¶5The Department’s concern was that police agencies might trigger Rule 45 by making an arrest, or even by filing a complaint, in circumstances where the Department had not yet determined that the case should be prosecuted, or that it could be prosecuted successfully. The Department suggested that the Rule 45 starting date should hinge on the formal initiation of the charge — under the assumption that this would not happen unless and until the Department had screened and approved the charging decision.

¶6The Criminal Rules Committee recommended this change to the Alaska Supreme Court, and the supreme court approved the change in April 1993. See Supreme Court Order No. 1127, which took effect July 15, 1993. As a result of this 1993 amendment, Rule 45(c)(1) now states that, in most instances, the starting date for calculating Rule 45 is the date on which “the charging document is served upon the defendant”.

¶7The legal distinction between receiving a copy of a document and being “served” with that document

¶8When we speak of “serving” a document that initiates a lawsuit, we mean something different from simply handing or mailing a copy of the document to the person affected (acts that normally would be sufficient to constitute “service” of a later pleading, once the lawsuit has begun). The law imposes special rules governing the service of the initial complaint because that act of service must accomplish two distinct things: not only (1) notifying the defendant of the allegations against them, but also (2) establishing the court’s jurisdiction over the person of the defendant — so that the court can lawfully direct the defendant to respond to the allegations in the complaint and, if those allegations are ultimately proved, so that the court can issue a judgement that will bind the defendant.

¶9In civil cases, unless there is proper service of a summons and a complaint as specified in Alaska Civil Rule 4, the court lacks personal jurisdiction over the defendant.1 And if the court lacks personal jurisdiction, any judgement the court enters against the defendant is void.2

¶10Personal jurisdiction over the defendant is also crucial in criminal cases. As in civil cases, the requisite personal jurisdiction can be obtained by the service of a summons and a complaint. The manner for doing this is prescribed in Alaska Criminal Rule 4 and Alaska Civil Rule 4(d).3 But in many (if not most) criminal eases, the court obtains jurisdiction over the defendant’s person by literally seizing the defendant — either pursuant to a warrant as provided in Criminal Rule 4;4 or by taking custody of the defendant following the defendant’s arrest without a warrant (in those instances where a police officer or a private person is authorized to arrest a suspect without a warrant).5

¶11When personal jurisdiction over the defendant is obtained by service of a summons and a complaint, the defendant receives the charging document at the same time that *1174personal jurisdiction is established. But when personal jurisdiction over the defendant is obtained by arrest, the charging document is normally not served at the same time.

¶12When an arrest is made without a warrant, the charging document will, of necessity, be drawn up later. Criminal Rule 5(a)(5) acknowledges this fact by expressly directing the government to promptly file a written complaint: “When[ ] a person arrested without a warrant is brought before a judge or magistrate [for their initial appearance], a complaint shall be filed forthwith.”

¶13But even when a complaint has already been filed, and the arrest is conducted pursuant to a warrant issued on that complaint (see Criminal Rule 4(a)(1)), the arrest will generally take place before the defendant receives a copy of the complaint. Under Rule 4(c)(3), the officers making an arrest upon a warrant need not possess a copy of the warrant, much less a copy of the complaint. Criminal Rule 4(c)(3) requires only that the officers inform the defendant that a warrant has indeed been issued, and upon what charge. If the defendant asks to see a copy of the warrant, and the arresting officers do not have one, Rule 4(c)(3) states that the police “shall show the warrant to the defendant as soon as possible”.

¶14In these cases, defendants will sometimes receive a copy of the complaint before they go to court for their initial appearance. But Criminal Rule 5(c)(2) declares that the defendant must receive a copy of the complaint at their initial appearance if no copy has previously been delivered to them.

¶15As a result of these various provisions of the Criminal Rules, a person who is arrested (with or without a warrant) and who remains in custody may wait as long as 24 hours before seeing a copy of the complaint. (Criminal Rule 5(a)(1) establishes 24 hours as the outer time limit for conducting the defendant’s initial appearance before a judicial officer.) But with the service of that complaint, the court obtains full authority to entertain the criminal proceeding against the defendant.6

¶16Thus, there are two crucial aspects to the initiation of a criminal prosecution: the assertion of personal jurisdiction over the defendant, and the act of providing the defendant with a copy of the charging document. When the prosecution is initiated by the service of a summons and complaint, the assertion of personal jurisdiction (ie., the service of the summons) occurs contemporaneously with the defendant’s receipt of a copy of the complaint. When the prosecution is initiated by an arrest, the assertion of personal jurisdiction {ie., the physical seizure of the defendant’s person) precedes the defendant’s receipt of a copy of the complaint by as much as 24 hours. But in either instance, it is the assertion of personal jurisdiction that makes the defendant’s receipt of the charging document a “service” of that document.

¶17The problem in this case: the superior court had physical custody of the defendant, and personal jurisdiction over him, but on a different matter

¶18In my discussion of instances where the court obtains personal jurisdiction over the defendant through an arrest, the implicit assumption was that the defendant’s arrest was conducted for the purpose of holding the defendant to answer one or more criminal charges arising from the incident that provided the basis for the arrest.

¶19AS 12.25.160 defines “arrest” as “the taking of a person into custody in order that the person may be held to answer for the commission of a crime”. Thus, not all acts of taking a person into custody constitute an “arrest” — for there are times when people are taken into custody for reasons other than holding them to answer for a crime. And in such instances, this Court has repeatedly held that the act of taking a person into custody does not constitute the commencement of a criminal proceeding.

¶20For example, in Lindsay v. State, 698 P.2d 659 (Alaska App.1985), the police interviewed the defendant concerning his potential involvement in a robbery. The police did not formally arrest Lindsay, and he was allowed *1175to return home after the interview.7 However, this Court ruled that, given the circumstances of the interview, Lindsay had been in custody for Miranda purposes.8 The next question was whether this custodial interview should be deemed an arrest for purposes of triggering Criminal Rule 45. Based on the definition of “arrest” codified in AS 12.25.160, we concluded that the answer was “no”— because when the police took Lindsay into custody, they did not do so for the purpose of holding him to answer for a crime. Id.,698 P.2d at 663.

¶21We reached a similar conclusion in Cannizzaro v. State, 765 P.2d 110 (Alaska App.1988). The defendant in Cannizzarofailed to appear for a scheduled court hearing on his motion to modify his sentence, and the judge issued a bench warrant for the defendant’s arrest.9 Cannizzaro was picked up on other charges and, while he was in jail, he was served with this bench warrant.10

¶22A little over three months later, a grand jury indicted Cannizzaro on a charge of failure to appear, based on his failure to appear at the sentencing hearing. Cannizzaro was arraigned on this charge, and his trial was scheduled for three months in the future.11 But a week before his scheduled trial, Can-nizzaro moved to dismiss the charge on Rule 45 grounds. He contended that the service of the bench warrant had constituted the commencement of the criminal proceeding for failure to appear, and that therefore the State had exceeded the allowed time for bringing him to trial.12

¶23We rejected Cannizzaro’s argument:

[The] bench warrant did not charge Can-nizzaro with a crime or command his arrest for the commission of a crime. Can-nizzaro was not “held to answer” for a new charge [when he was] arrest[ed] on the warrant. Rather, his arrest [served] only to secure his presence for [the] sentencing proceedings he had previously missed. Because Cannizzaro was not arrested for purposes of Criminal Rule 45 when he was served with the bench warrant ..., his ... arraignment on the indictment was the event that triggered the 120-day speedy trial period.

¶24Cannizzaro, 765 P.2d at 112.

¶25The problem in the present case is that even though Gottschalk was arrested, and even though his arrest was based, in part, on his act of driving under the influence, Gott-schalk was not arrested so that he could be held to answer a charge of driving under the influence (or any criminal charge). Rather, Gottschalk was arrested for violating his probation.

¶26Gottschalk was on probation from an Anchorage criminal case (File No. 3AN-98-4387 Cr). In March 2003, Gottschalk violated his probation by (1) leaving his region of residence without his probation officer’s permission, (2) consuming alcohol, and (3) driving a motor vehicle under the influence. Gott-schalk was arrested for these probation violations, and he was brought to Anchorage for probation revocation proceedings.

¶27In this way, Gottschalk’s case is similar to Cannizzaro. As was the case in Cannizzaro, some of Gottschalk’s post-sentencing conduct constituted a new crime, and it was foreseeable that he might be charged with that crime. But Gottschalk’s arrest in March 2003 was not done for the purpose of holding him to answer a new criminal charge. Rather, Gottschalk was arrested because there was probable cause to believe that he had violated the terms of his probation in the 1998 Anchorage case.

¶28Three and a half months later, in early July 2003, while Gottschalk was in jail in Anchorage, a Bethel grand jury indicted him for his act of driving under the influence, and the superior court issued an arrest warrant based on this indictment. A member of the Anchorage District Attorney’s office faxed a copy of the Bethel indictment to Gottschalk’s attorney, and Gottschalk personally received *1176a copy of this Bethel indictment on July 9, 2003, when the parties were in court in connection with the Anchorage probation revocation proceeding. But Gottschalk was not arrested on the Bethel indictment until October 8, 2003 (when he was served with the superior court’s warrant), and Gottschalk’s initial appearance on the Bethel indictment did not occur until the following day. (This initial appearance took place in the Anchorage superior court.) Thus, not until October did the superior court establish personal jurisdiction over Gottschalk to try him for the crime charged in the indictment.

¶29Criminal Rule 45(c)(1) does not expressly speak of personal jurisdiction. Rather, the rule says that the time for bringing the defendant to trial is calculated from the date on which the charging document is “served” on the defendant. But, as I have explained here, “service” of a criminal charge requires not only delivery of a copy of the charging document but also the establishment of personal jurisdiction over the defendant.

¶30Just as a potential defendant in a civil lawsuit might learn of the lawsuit and might even obtain a copy of the complaint without ever being properly served, so too a defendant in a criminal proceeding might obtain a copy of the complaint or indictment without ever being summoned or arrested. In both the civil and the criminal context, even though the defendant might possess a copy of the complaint, the court would be powerless to proceed against the defendant until, through the act of summons or arrest, the court established jurisdiction over the defendant’s person.

¶31That was the situation in Gottschalk’s case when he received a copy of the Bethel indictment on July 9th. Gottschalk now had a copy of the charging document, but he was not “served” in any meaningful sense because the superior court had yet to establish personal jurisdiction over Gottschalk in the Bethel criminal ease — jurisdiction that was necessary before the court could call upon Gottschalk to answer the Bethel indictment.

¶32For these reasons, I concur with my colleagues that Rule 45 was not violated in Gottschalk’s ease. This is not to say, however, that I think this result is a good one. Gottschalk’s case highlights a problem with the present formulation of Rule 45(c)(1).

¶33Normally, there is no problem with having the Rule 45 starting date hinge on the “service” of the charging document — because, in a typical case, the State will not have physical custody of the defendant when the State decides to file a criminal charge, and thus the State will be motivated to promptly establish personal jurisdiction over the defendant through either the service of a summons or an arrest.

¶34But when, as in Gottschalk’s case, the defendant is already in custody in connection with another criminal proceeding, and the State files new charges, there is no pressure on the State to summon or arrest the defendant on the new charges, or to have the defendant arraigned on the new charges. Unless the defendant learns of the new charges and affirmatively demands arraignment on those charges, the Rule 45 “clock” might not be triggered for months or even years — if, for instance, the defendant’s new criminal conduct constitutes a violation of the defendant’s probation in an earlier case, and the defendant is sentenced to serve a lengthy term of imprisonment as a result of this probation violation.

¶35For this reason, I think that the supreme court should direct the Criminal Rules Committee to consider how Criminal Rule 45(c)(1) might be amended to cure this problem.